Baxter, Shanta v. Federal Express Corp. , 2021 TN WC 204 ( 2021 )

FILED
Jul 21, 2021
02:02 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
SHANTA BAXTER, ) Docket No. 2020-05-0697
Employee, )
v. )
)
FEDERAL EXPRESS CORP., ) State File No. 98745-2017
Employer, )
and )
)
AGRI GENERAL INS. CO., ) Judge Dale Tipps
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on July 20, 2021, for an Expedited Hearing on
whether Ms. Baxter is likely to prove at a hearing on the merits that she is entitled to
psychiatric treatment. To receive these benefits, she must show that her panel physician
made a referral and that her need for the requested treatment arose primarily out of and in
the course and scope of her employment. The Court holds that Ms. Baxter was unable to
meet this burden and denies the requested benefits at this time.
History of Claim
Ms. Baxter suffered shoulder and arm injuries while working for FedEx on
December 18, 2017. FedEx accepted the claim as compensable and provided medical
benefits, including treatment for cervical pain, by panel physician Dr. Colin Crosby.
On August 2, 2019, Dr. Crosby placed Ms. Baxter at maximum medical
improvement. He concluded his note with the following: “She is having psychological
stress due to the failure of her to improve from her work-related injury and has requested
to see a psychiatrist which is reasonable.”
Ms. Baxter testified that FedEx initially authorized psychiatric treatment but then
denied it before she could attend an appointment. She claimed she is still suffering from
anxiety and asked to see Dr. Keith Caruso.
FedEx responded that Ms. Baxter is not entitled to the requested treatment because
her physical injuries were gradually occurring, and a mental injury that is the result of
gradual events is not compensable. It also argued that the statutory definition of “injury”
specifically excludes a “psychological or psychiatric response due to the loss of
employment or employment opportunities.”
Findings of Fact and Conclusions of Law
In this expedited hearing, Ms. Baxter must provide sufficient evidence from which
this Court might determine she is likely to prevail at a hearing on the merits. See Tenn.
Code Ann. § 50-6-239(d)(1) (2020); McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Ms. Baxter seeks an order for psychiatric treatment. Tennessee Code Annotated
section 50-6-204(h) provides: “All psychological or psychiatric services available under
subdivisions (a)(1) and (b)(1) shall be rendered only by psychologists or psychiatrists and
shall be limited to those ordered upon the referral of physicians authorized under
subdivision (a)(4).” As the Appeals Board noted in Beech v. G4S Secure Solutions (USA),
2020 TN Wrk. Comp. App. Bd. LEXIS 71, at *9 (Dec. 16, 2020), this means the only issue
before the Court at this stage is “whether [Ms. Baxter] came forward with sufficient proof
from which the trial court could conclude a panel-selected treating physician made a
referral to a specialist.”
The only proof before the Court on this issue is a single sentence from Dr. Crosby:
“She is having psychological stress due to the failure of her to improve from her work-
related injury and has requested to see a psychiatrist which is reasonable.” The question
then is whether this statement constitutes a “referral” under section 50-6-204(h). The Court
finds that it does not.
A plain reading of Dr. Crosby’s comment shows that, at most, Ms. Baxter requested
to see a psychiatrist, and that the doctor felt the request was reasonable. In view of the
statute’s very specific referral requirement, Dr. Crosby’s mere agreement with the
reasonableness of Ms. Baxter’s desire to see a psychiatrist is insufficient to require FedEx
to provide a panel. The Court is not suggesting that any specific phrase or wording is
required, but a doctor noting the reasonableness of a patient’s request does not constitute
an affirmative, intentional referral.
Therefore, without additional medical proof, Ms. Baxter has not shown she is likely
to succeed on a claim for psychiatric treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Baxter’s claim against FedEx for additional medical benefits is denied at this
time.
2. This case is set for a Scheduling Hearing on September 16, 2021, at 9:00 a.m. The
parties must call toll-free at 855-874-0473 to participate. Failure to call might result
in a determination of the issues without your further participation. All conferences
are set using Central Time.
ENTERED July 21, 2021.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Baxter’s Affidavit
2. Dr. Samuel Crosby’s October 31, 2019 progress note
3. Dr. Colin Crosby’s August 2, 2019 progress note
4. Medical appointment documents
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. FedEx’s Pre-Expedited Hearing Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on July
21, 2021.
Name Certified Fax Email Service sent to:
Mail
Shanta Baxter, X X 3000 Windsor Drive
Employee Columbia, TN 38401
shayb301@yahoo.com
James Tucker, X jtucker@manierherod.com
Employer’s Attorney cc: dstevens@manierherod.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082